DENNIS McCOY v. DILLARDS, INC. AND LARRY SINGLETON
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RENDERED:
APRIL 12, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002044-MR
DENNIS McCOY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 98-CI-007187
v.
DILLARDS, INC.
AND LARRY SINGLETON
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MILLER, JUDGES.
BARBER, JUDGE:
We are asked to decide whether failure to object
to the jury’s verdict constitutes waiver.
For the reasons
outlined below, we reverse and remand for reinstatement of the
original judgment in favor of the Appellant, Dennis McCoy
(“McCoy”), plaintiff below.
The Appellees are Dillards, Inc. and
Larry Singleton (“Appellees”).
McCoy’s complaint arose out of an incident at a
Dillard’s store involving Singleton, who was working as a
security guard.
The facts are not at issue on appeal.
McCoy
explains that the jury returned a verdict in his favor under
Instruction No. 1 (False Arrest), and awarded “$0" in
compensatory damages; the jury awarded $1,000.00 in punitive
damages under Instruction No. 7.
There was no objection to the
verdict by either party prior to discharge of the jury.
Following the trial, both parties tendered judgments to
the court.
On June 7, 2000, the trial court entered McCoy’s
tendered judgment.
On June 16, 2000, the Appellees filed a
motion to vacate the judgment on the ground that it was a
nullity, contending that punitive damages cannot be recovered, in
the absence of at least nominal compensatory damages, citing
Estep v. Werner, Ky., 780 S.W.2d 604 (1989) and Lawrence v.
Risen, Ky. App., 598 S.W.2d 474 (1980).
the motion.
The trial court granted
On July 28, 2000, the trial court entered judgment
dismissing the action against the Appellees with prejudice at
McCoy’s cost, the jury not having found any compensatory damages.
McCoy appeals and argues that the trial court erred in
granting Appellees’ motion to alter, amend, or vacate the June 7,
2000 judgment.
McCoy contends that where a jury verdict is
incomplete or ambiguous, the proper procedure is for the affected
party to ask the court to send the jury back or correct the
verdict.
McCoy maintains that the affected party must do this
prior to the discharge of the jury, or the error is waived, and
relies upon Smith v. Crenshaw, Ky., 344 S.W.2d 393 (1961), and
Breathitt Funeral Home v. Neace, Ky., 437 S.W.2d 490 (1969).
In Smith, the court recognized that “Our prior
decisions on the question of whether a defect in a verdict is
waived by failure to move that the jury be returned to the jury
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room to complete or correct the verdict are not consistent.”
at 395.
Id.
In Smith, the verdict was patently incomplete in that it
made no finding on the claim of the administrator or on the
counterclaim of Crenshaw.
One could not tell from the verdict
whether the jury intentionally did not allow anything on the
counterclaim, or whether they simply overlooked the matter of
awarding damages on the counterclaim, which was for a small
amount.
In Breathitt, the verdict was irregular because the jury
rendered an award against the two masters but did not find
against their two servants, who were operating the motor vehicles
and had been made parties defendant.
Appellees attempt to distinguish these cases and cite
cases from foreign jurisdictions in an attempt to persuade us to
affirm the trial court’s judgment.
We need not resort to the law
of other jurisdictions, where Kentucky law is dispositive of the
issue before us.
In Hazelwood v. Beauchamp, Ky. App., 766 S.W.2d 439,
440 (1989), the jury awarded medicals but put “0" in the two
blanks for pain and suffering and for lost earnings.
The jury
was sent back to deliberate the issue of damages for pain and
suffering.
The court explained
that it is futile to require a jury that has
consciously inserted “0" or its equivalent to
reconsider its decision. This is not the
same situation as that created when a jury
has left a verdict slot blank. Such a
verdict is patently irregular or incomplete
. . . . [W]here the jury has deliberately
awarded nothing, despite the evidence and
instructions to the contrary . . . . [the]
verdict is no more incomplete or irregular
than had the jury inserted one dollar. It
may be defective as contrary to the evidence
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and the law that relates to the adequacy of
an award, but such a defect is one
appropriate to be addressed by the trial
court upon a motion for a new trial.
In Spalding v. Shinkle, Ky. App., 774 S.W.2d 465, 466
(1989), the jury awarded future medicals but failed to award
future pain and suffering. The court explained:
We begin by pointing out that a distinction
exists between a jury leaving a verdict slot
blank and where the jury inserts "0" or its
equivalent. Leaving a verdict slot blank
would indicate one or more of the following
on the jury's part: (1) an oversight, (2)
confusion, or (3) refusal to make an award.
A blank verdict slot is patently an irregular
or incomplete verdict. A blank slot
circumstance is controlled by the rule in
Breathitt Funeral Home v. Neace, Ky., 437
S.W.2d 490 (1969) . . . .
. . . .
Under the facts of the present case, the jury
consciously inserted "0." This finding is
not an irregular or incomplete verdict.
Therefore, it was not a waiver of error
situation.
In Cooper v. Fultz, Ky., 812 S.W.2d 497 (1991), the
Supreme Court reaffirmed the reasoning in Hazelwood and Spalding.
In Cooper, the Supreme Court:
accepted discretionary review to consider
under what circumstances the waiver
principle, which requires a party to move the
court to correct a patent inconsistency in
the verdict before the jury is discharged or
forfeit the right to complain of it
thereafter, should apply to the present
situation. For reasons that will be stated,
we have decided that the waiver principle
should not apply where the jury's award
specifies "-0-", as contrasted with failing
to complete the verdict by leaving it blank.
-4-
Id. at 499.
Here, the jury inserted “-0-” for compensatory damages;
thus, waiver does not apply.
That said, we agree with McCoy that
the trial court erred in granting the motion to vacate the June
7, 2000 judgment — but on other grounds — and reverse under CR
61.02, which provides:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
The trial judge vacated the judgment for McCoy because
the jury did not award compensatory damages; however,
Commonwealth of Kentucky, Department of Agriculture v. Vinson,
Ky., 30 S.W.3d 162 (2000), explains that punitive damages may be
available, absent an award of compensatory damages.
The
decision, which dealt with a claim under the Whistleblower Act,
provides a detailed discussion of the common law of Kentucky on
punitive damages:
The Department of Agriculture argues that
Vinson and Anderson were not entitled to
punitive damages in the absence of actual
compensatory damages. They contend that the
punitive damages provision of the
[Whistleblower] Act should be interpreted in
harmony with the Kentucky common law of
punitive damages. They assert that the
legislature did not intend to change the
common law because the statute contains no
language expressly declaring such a change.
-5-
The undisputed evidence demonstrates that
Vinson and Anderson did not suffer a loss of
wages or fringe benefits. The Department of
Agriculture maintains that the trial judge
erred in instructing the jury on punitive
damages in the absence of compensatory
damages. We disagree. In support of its
argument, they cite 24 cases from other
jurisdictions as well as Estep v. Werner,
Ky., 780 SW2d 604(1989); Karst Robbins Coal
Co., Inc. v. Arch of Kentucky, Inc., Ky.
App.,964 SW2d 419 (1997); and Lawerence v.
Risen, Ky. App., 598 SW2d 474 (1980). Estep,
supra, and Karst Robbins, supra, relied on
the earlier case of Risen, supra, which in
turn cited Louisville & N.R. Co. v. Ritchel,
148 Ky., 701, 147 SW2d 411 (1912).
Ritchell,1 supra, states in part that a
verdict for punitive damages only will not be
set aside because the jury failed to return a
verdict for compensatory damages. Where the
plaintiff has suffered an injury for which
compensatory damages, though nominal in
amount may be awarded, the jury may in a
proper case, award punitive damages as well.
The Ritchell court stated as follows:
It is true that there are
respectable authorities
which appear to hold that
punitive damages cannot
be awarded when the
actual injury is merely
nominal. In our opinion,
however, this view is not
correct, and does not
agree with a great weight
of authority. The
correct rule, we think,
is that if a right of
action exists; that is,
if the plaintiff has
suffered an injury for
which compensatory
damages might be awarded
although nominal in
1
Ritchell, supra, affirmed a judgment entered upon a jury
verdict for punitive damages only.
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amount, he may in a
proper case recover
punitive damages . . . .
The fact that the jury
returned a verdict for
punitive damages only,
furnishes no just reason
why the verdict should
not be allowed to stand,
since, under the rule in
force in this State,
punitive damages, when
allowed, are given as
compensation to the
plaintiff and not solely
as punishment of the
defendant.
Ritchell. (Internal citations omitted.) It
is clear that Kentucky follows the rule that
it is the invasion of a right which entitles
a person to legal compensation.
We are also persuaded by the reasoning of
Nappe v. Anschelewitz, 97 N.J. 37, 477 A.2d
1224 (N.J. 1984) that compensatory damages
are not an essential element of an
intentional tort committed willfully and
without justification. The mere fact that no
compensatory damages were awarded to Vinson
or Anderson does not mean that they did not
have compensable injuries. The fact that
there is not a quantifiable monetary damage
awarded for lost pay does not mean that
injury did not occur.
The trend throughout this nation is to allow
recovery for punitive damages in an equitable
action. [Citation omitted.] The absence of
a showing of actual damages need not bar an
award of punitive damages. [Citations
omitted.] We agree.
. . . .
Here there is a factual basis for a possible
award of actual compensatory damages although
not given in this case. The common law of
Kentucky does not provide a basis for
defeating the judgment in question . . . .
-7-
Id. at 165-66.
False imprisonment is an intentional tort.
It protects
the personal interest from physical restraint and may be
maintained without proof of actual damages.
Ky. App., 39 S.W.3d 474 (2001).
Banks v. Fritsch,
The jury found in McCoy’s favor
on false arrest and awarded $1,000.00 in punitive damages.
We
are persuaded that a manifest injustice has resulted from the
trial court dismissing McCoy’s action with prejudice because the
jury did not find any compensatory damages.
We reverse and
remand for reinstatement of the June 7, 2000 judgment in McCoy’s
favor.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Thomas W. Dyke
Louisville, Kentucky
Robert E. Stopher
Robert D. Bobrow
Boehl Stopher & Graves, LLP
Louisville, Kentucky
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